It has a finite legal meaning and relates only to the dissolution of a marriage and not the potential surrounding issues of property settlements and custody arrangements. Changes to the Family Law Act in 1975 made 'no fault' Divorce possible and altered the law such that there is now only one ground for Divorce recognised by Australian courts, which is citing "irreconcilable differences".
Historically the reason for Divorce could impact upon any ensuing property or custody settlement outcome – for example an adulterer may have been given a smaller piece of the matrimonial property pool. This is no longer the case. Besides from the issue of violence or abuse, the court now does not take into account the reason the marriage broke down when deciding on matters around property and children.
A Divorce is right for you if you and your spouse no longer wish to continue your marriage and either you or your spouse or both of you:
To apply for a Divorce, you must complete an Application for Divorce and file it with the Federal Magistrates Court and pay the Application fee of $800. You can file for Divorce jointly with your spouse or on your own. Many people prepare their own Divorce Application but you may also want to ask a lawyer to do it for you. If you decide to do it on your own, visiting Family Law Courts Australia website at www.familylawcourts.gov.au will allow you to access all of the necessary forms and accompanying instruction brochures.
When a couple have been married for less than two years there are certain additional requirements that must be met before the court will grant a Divorce. If you have been married less than two years and want to apply for a Divorce, you must either:
The two years are calculated from the date of the marriage to the date of applying to the Court for a Divorce. The usual requirement that both parties must have been separated for at least 12 months before applying for a Divorce also still applies.
If you have made a sole Application, you need to serve the Divorce Application on your spouse. If you have taken all reasonable steps to serve your Divorce Application on your spouse and you are unable to do so, you may apply to the Court for:
If this is happening to you, you may wish to speak to a lawyer.
Once you and your spouse have been separated for more than 12 months, there are few opportunities to oppose a Divorce Application. You can only oppose the Divorce where:
If you oppose a Divorce being granted, you must complete and file a Response to Divorce and appear in person, or instruct a lawyer to appear for you on the hearing date. The court will need to be made aware of the grounds on which you seek the dismissal of the Divorce as outlined in the Response to Divorce. It is important to note that the court will only consider your Response if it is made on one or both of the above listed grounds. If you wish to oppose a Divorce Application it may be worth obtaining legal advice.
If you desire the Divorce granted but believe there are factual errors in the Application you may file a Response to Divorce stating with which facts you disagree. The errors might, for example, be that dates of birth are incorrect or the details regarding the children are no longer correct. If you have filed such a Response it is prudent to attend the Divorce hearing.
If you want to file a Response to Divorce, you need to file it at a family law registry:
Once the Application has been filed and the appropriate amount of time has passed since filing the Divorce Application for a Response to be filed, being either 28 or 42 days depending on the circumstances, a Divorce Hearing date will be set.
If there is no child of the marriage aged under 18 years, neither party will be required to attend the court hearing. The Family Law Courts website advises that if there is a child of the marriage aged under 18 years but you have made a joint Application usually neither party will be required to attend the court hearing. If however a sole Application has been made and there is a child of the marriage aged under 18 years, the applicant must attend the court hearing in person unless circumstances prevent it, in which case other arrangements such as a phone or video link up must be made. Even if there is no child of the marriage, if a Respondent has completed and filed a Response to Divorce they should attend the Divorce hearing. If they do not attend, the Court may decide the Divorce Application in the party's absence.
The entire Divorce process takes a minimum of 15 months. You need to stay separated for 12 months and one day, then make an Application for Divorce and wait for the court to set a date to hear your Application. After the matter has been heard in court, it will take at least one month to become officially Divorced.
Generally the filing fee for an Application for Divorce is $800. If this sounds burdensome you should be aware that you may be qualified to apply to file at a reduced fee; for example, if you hold certain government concession cards or you are experiencing financial hardship, you may be eligible for a reduced fee. To apply for the lower rate you must file an Application for a reduction of Court Fees form or an Application for a reduction of Court Fees on the basis of financial hardship. These forms can be found at www.familylawcourts.gov.au.
Many people believe that the Divorce process is where issues of property, maintenance and child arrangements will be decided, but this is not the case. The settling of property matters and the settling of children's matters are distinct legal processes.
It is prudent to speak to a lawyer about the proper proceedings when deciding issues of property, maintenance and child custody matters. However briefly surmised it can be said that you can either:
If you wish to apply for maintenance for yourself or a division of the marital property, you must file the above mentioned Application within 12 months of the date the Divorce becomes final. If you fall outside of this time period you will need the Court's permission to apply. This will bring additional costs and delay to your Application.
For further information on Divorce procedure the Family Law Court's website at http://www.familylawcourts.gov.au is a great place to look. You can also give the Registry a call on 1300 352 000 or email email@example.com and they will answer procedural questions such as what form(s) you will need to complete and how to file them. If you have any legal questions the Registry cannot help you and it may be wise to contact a family lawyer.
Poppy Matters is a Lawyer for Camatta Lempens of Adelaide. She has a Bachelor of Laws and Legal Practice (Honours) and a Bachelor of International Studies. Poppy practices in family law and de facto law and Wills and Estates.
You can read Poppy Matter's full profile here
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